But that's the problem, Whit--he wasn't a defense attorney. That would be the solicitor general's office--or the white house counsel.

He was an advisor-in the office of legal counsel--giving the government an opinion on what the law is, so that they understood what they could do legally.

If you understand the role he was supposed to have, it explains a lot of his outrageously optimistic opinions if you think that he approached his job with the mindset of a "defense lawyer;" not an advisor on what the law is.

Simple example of a murder case---as you note, a defense lawyer's job is to keep you out of prison, by pointing out flaws in the government's case (say, no eyewitnesses)

But an advisor would be catastrophically wrong to say "murder isn't unlawful, because you won't get caught--if you do it with no eyewitnesses". The advisor should say "murder is unlawful"--even if his client really wants to do so.

I used to correspond with John Yoo, and once spoke with him on the phone, when he was at Berkeley, before joining the Bush Administration. During the course of that I presented him with a number of legal arguments on various subjects, such as that if a foreign terrorist were tried as a pirate and condemned to death, he could then lawfully be tortured because he was "legally dead", as long as he always had the choice of death to end the torture. I didn't advance that and other arguments as being in favor of them, but some of them seem to have found their way into Yoo's briefs. I asked him about that at the last Federalist Society National Convention, but he didn't do much more than the deer in the headlights thing.

Yoo is actually a nice guy, but he is the ultimate hired gun, and I suspect he would have provided a legal rationale for Hitler had he been working for that regime.

These memos I wrote were not for public consumption. They lack a certain polish, I think -- would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently.

So on Yoo's account the problem with his OLC memos was that he "tr[ied] to give unvarnished, straight-talk legal advice"?!?

You've been pretty tough on Yoo (with good reason). And yet, I presume that you guys travel in some of the same circles. What happens when you're introduced to him at cocktail parties or the like? Do you politely chuck him on the shoulder and ask him how he likes being Professor Yoo? Do you turn a cold shoulder and become indignant for the disgrace he's brought on the profession? Or do you just look around the room for Bernstein and tell him that you have someone he needs to meet?

The remarkable thing is that Yoo could say that without even realizing what he was saying.

(And thanks, Ralphson, for batting down the extremely tired "but Yoo was an advocate" move, which frequent VC commenters on these subjects should know better than, by now. I think I need a shortcut for that where I just print out what you wrote -- Control + B + S, perhaps.)

A. I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, "What are people going to think of me?" Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do.

That's certainly true as a general matter. The problem is that Yoo doesn't seem to believe the related point that there are things that someone can or even (in the person's view) should do, that are nevertheless illegal. Yoo's memos are animated by the theory that if the President thinks he should do it, then it is legal to do it.

By the way, the correct Arabic/Muslim term for terrorism is fasad, and one who practices it a fasadi. From that we could reasonably coin the term fasadism, after distinguishing it from the architectural practice. It is mistake and an insult to use the term jihad, jihadi, or jihadism for terrorism.

As to whether Orin thinks that Yoo should be investigated/disbarred/prosecuted (which I'm guessing is where you're going), Orin has made it clear that he doesn't care to opine on that except maybe in private at the cost of a beer. Which is his prerogative.

Can't speak for Orin but at the Federalist Society National Convention everyone seemed friendly and cordial to him, including me. But I would be friendly and cordial to someone I had to kill. Practitioners of law seem to compartmentalize their professional differences in social situations.

If Yoo's job was to stretch the envelope, I think we all agree that he did an outstanding job.

I think he barely got started. Sure, he managed to expand the bounds of the Presidential child-testicle-crushing authority, but what do you do with a prisoner who refuses to confess and doesn't have any male children? Is father-testicle-crushing still off limits? How about daughter molestation? We can't yet say. Although Yoo's pioneering work in Testicular Law will never be forgotten, his real legacy is likely to be the path he opened up for future generations to follow.

How much of this was the result of putting an academic in a policy position? What might have been a mildly controversial but otherwise harmless law review article turns into something completely different when given the color of policy. Even now, I'm not sure whether Yoo actually believed what was in his memos, or was given the task of writing them and thought it would be an interesting intellectual exercise to write a memo from an extremely pro-executive-powers point of view.

How much of this was the result of putting an academic in a policy position? What might have been a mildly controversial but otherwise harmless law review article turns into something completely different when given the color of policy. Even now, I'm not sure whether Yoo actually believed what was in his memos, or was given the task of writing them and thought it would be an interesting intellectual exercise to write a memo from an extremely pro-executive-powers point of view.

Well, most academics I know understand the difference between a law review article and a formal opinion giving the united states government advice on what the law is.

It's not hard to detect I don't think much of Yoo-but I just can't square him being that ignorant with the fact that he's a law professor (though he did fail to cite youngstown in a memo on presidential power when congress has legislated on the issue).

I don't think that my feeling he can't be this dumb helps him--because the options are unethical and unlawyerly(giving advice that stretches the law far beyond the bounds of reasonableness in order to further your client's questionable goals)or so stupid he didn't understand that the memo was written for the office of legal counsel, not the stanford law review.

Maybe because he clerked for Judge Silberman and Justice Thomas; he obtained high-level postions in Republican politics in positions only open to conservatives; he is an active member of the Federalist Society; an he says things like, "I'm a conservative"?

The end of the sentence, clear to everyone on the thread but you, apparently, is "it wasn't." There's no matter of courage involved here, because the end of the sentence is clear from the context. (That was the joke, which most people got.)

It's rather strange that you seem to imagine to the contrary. Perhaps you could explain why you thought there was some aspect of courage involved? If you would like to comment here in the future, I would hope you will explain your accusation and offer an argument for it or else just apologize.

I think I would need to hear your definitions of "America" and "safe," because on mine, that statement makes no sense. Torture is an inferior method of getting information; America is a country founded on the principle of inalienable human rights.

There were plenty of folks in the memo chain. The one who is not a WASP is the one 1) jumped on over and over; 2) with his name now smeared into jokes and insults; 3) and linked by name with rhymes and puns that are starting to come close to the Charlie Chan movies of the 1930s.

Why is Philbin getting a pass here? Background just as high powered as Yoo's. In fact, the judgship (I think) trumps the prof. Let's look at the pictures. One of these things is not like the others.

Or to put it another way, Happyshooter really ought to tell Jerry Brown--I think he and his wife would be awfully surprised.

If Yoo is a bush lawyer, than Brown is a gay lawyer.

This may come as a shocker to you, but lawyers are linked and named as to the type of law and causes they do. Mayor Oscar Goodman is a mob layer not because he is a mobster but because that is the law he is linked with. Dawn Johnsen is an abortion lawyer not because she is aborted, but because she litigates pro-abortion. A criminal lawyer defends folks accused of crimes. A family law lawyer...

This may come as a shocker to you, but lawyers are linked and named as to the type of law and causes they do.

I didn't know there was an area of law called bush law.

Thanks for explaining what you meant by "gay lawyer". Silly me I assumed that when you literally equated someone to "smart gay" and "good gay" that meant they were gay. But no doubt in your private language, a "smart gay" or a "good gay" need not be gay.

Why is Philbin getting a pass here?

Good question. He doesn't deserve one. Of course the launching point for Orin's post was an interview Yoo gave. Nonetheless, it is true that Yoo is the focal point generally. I see no reason to think that has to do with racism though.

I am Jewish, and you are criticizing me, I believe: By your own reasoning, aren't you an anti-semite? I mean, of all the threads on the Internet, you want to suggest it is just a coincidence that you pick that of a Jew?

Such an accusation would be absurd, of course, if meant seriously, but it is no more absurd than the position you appear to be genuinely taking. Of course, if you want people to discount everything you say here at this blog from here on, that is your choice.

Such an accusation would be absurd, of course, if meant seriously, but it is no more absurd than the position you appear to be genuinely taking.

The difference being 1) if you and the whole crew here did something; and 2) if your name was something really jewish looking(?) like Kerrstein or Kerrburg; 3) and none of the other bloggers here were jews; and 4) we all started rhyming your very racial linked name-- I would have doubts.

I am nowhere near perfect. I need to crank down on myself a lot when I start to judge people by race or religion. It happens several times a day. I just think we all here as a comment group are pushing it hard on Yoo.

I also know (and admit) that race is not the only reason for one guy in a group action taking the whole load in the public's eye. Ollie North was just a O-5 Lt Col and he took the whole blame (and to be fair, credit) for the Iran/Contra mess where there was a direct supervisor Vice Adm (O-9) who slipped past the public's eye and was reappointed to public service.

Good question. He doesn't deserve one. Of course the launching point for Orin's post was an interview Yoo gave. Nonetheless, it is true that Yoo is the focal point generally. I see no reason to think that has to do with racism though.

There are plenty of other people who should take blame. But there is one crucial fact about the memos we're criticizing here that makes it not just rational, but sensible to focus the blame on him.

Most people who realize that Brown is a straight person defending gay rights would have said this: "Brown is a gay-rights lawyer."

This is true. Also, most people trying to imply that Brown was a gay-rights lawyer, rather than a homosexual lawyer, would not follow the statement "Gay lawyers stretching the law to get gay marriage" by suggesting that that equates to

good gay good gay smart gay smart gay

My professors still taught the phrase Noscitur a sociis

I propose the application of that to Happyshooter's statement is straightforward and unambiguous.

Honestly, don't you react inside when you see the four black teens with the hanging pants at the mall pimp walking, or the 1987 buick regal with the blackout windows and mexican flag blasting music at the stoplight? Or worse, when I get in the sushi line at the kroger and in front of me is one woman, overweight, one man, overweight, three or four kids in nascar clothes or hats, and the man is wearing a jacket from one of the GM or Delphi plants.

I mean, I can pretend I don't react but I would be lying to myself.

And as for Orin, is that a 'jewish' name? I don't know, and didn't know Rohm was until a few months ago.

First you admit that you judge people by their race and religion every day; then you admit that you have ill feelings towards African-Americans; then you start saying that you don't know if certain Jewish names are really Jewish. Perhaps it would be better if you didn't comment here? I don't think racism is civil.

Prof. Kerr, though I think HappyShooter has done a fine job of embarrassing himself here, I do think you're mis-reading his "I don't know if Orin is Jewish" remark. I don't think he was casting doubt, but rather conceding ignorance.

Okay, I gotta go now -- some fat black guys in Nascar jackets are pimp-walking past my lowrider. You know how nervous that makes a man...

Orin, I wasn't trying to be offensive. I really didn't know that Orin was a ethnic name.

I am sorry I suggested that other people in the world have reactions to people based on their appearence. I do, and I try to control it and correct for it. The fact that I am posting under a internet name means I can be honest about it, which is the blessing and the curse of the net. I did not mean to accuse you of having the same reactions.

Please do not allow my honesty and my shortcomings to overwhelm my main point, which is that the Yoo thing is getting driven into the ground and looks like it is getting unfair.

Having issues and knowing you have issues puts you miles ahead of the people who have issues and don't know they have issues. And I think most people who have issues fall into the latter category. So I respect you for taking a big step to be bigger than your issues.

"The end of the sentence, clear to everyone on the thread but you, apparently, is "it wasn't." There's no matter of courage involved here, because the end of the sentence is clear from the context. (That was the joke, which most people got.)

"It's rather strange that you seem to imagine to the contrary. Perhaps you could explain why you thought there was some aspect of courage involved? If you would like to comment here in the future, I would hope you will explain your accusation and offer an argument for it or else just apologize."

Well, why not just say what you mean? If you meant to criticize the man by saying, "On the other hand, back when he was in government he wasn't," that's an easy thing to communicate. It's just two words. I questioned it because that structure is often one people hide behind when they lack well formed thoughts or argument but want to pretend they do.

Actually, I do think it is a matter of courage to stand up and express one's thoughts. I think it's a matter of courage to clearly state one's position when the probabilty is there will be opposing views generated. I think it is a matter of courage to have sufficient confidence in one's position to state it clearly. I concede different people have different ideas of courage, but that is mine, and I hope it answers your question.

Let me ask this. Why leave off those two words? Can we agree the two statements communicate two different things? It is not a common construction, and it doesn't seem to be something you use often. I presume you were attempting to communicate something other than "it wasn't." What was that?

well, as long as people are admitting their ignorance and apologizing ...

I did not know either Orin or Kerr (or Joseph Slater) are jewish names. I am sorry!

there may be other names of regular posters that i may not realize are jewish, and from time to time I may criticize them (hopefully not rudely) - but I am not an anti-semite. just ignorant of jewish names.

for the record, I don't see that happyshooter insulted Prof Kerr on his jewish name. Prof Kerr seems to overreact a bit these days (I am a long time reader and he was not like this a year ago ... may be people are trying his patience)

Maybe because he clerked for Judge Silberman and Justice Thomas; he obtained high-level postions in Republican politics in positions only open to conservatives; he is an active member of the Federalist Society; an he says things like, "I'm a conservative"?

Just a guess.

may be you should have quoted my complete comment instead of just that one sentence.

"...- he told his boss what the boss wanted to hear; typical consultant)

* i don't know if he is one or not, but i don't see that being a necessary condition for what he did"

I wondered why his being a conservative should be the cause of his stance on terrorist interrogation.

Bush was an alcoholic - was being a republican the reason? Daschle and Gaitner are tax cheats - is it because they are liberals / democrats? (i don't know if Gaitner is a democrat or a liberal).

I was actually joking about the Jewish name stuff: lots of people don't realize it's a Jewish name. (See the first post on tis, where I called the argument that Happyshooter was antisemitic "absurd".). But obnoxious commenters like Elliot123 and Happyshooter are indeed trying my patience: As I've commented before, I'll probably just stop allowing commenting on my threads to avoid having to encounter folks like that. It's a shame that they will have ruined it for everyone else, but that's the way it goes, I guess.

I wondered why his being a conservative should be the cause of his stance on terrorist interrogation.

But no one here has suggested that "his being a conservative [was] the cause of his stance on terrorist interrogation." On the contrary. I think various people in various threads have pointed out that "his stance on terrorist interrogation" is a betrayal of conservatism, rather than something 'caused' by conservatism. So I don't know why you would be wondering about that.

Anyway, maybe you were wondering (to yourself) about that, but it's not what you asked. You didn't say 'I wonder why his being a conservative should be the cause of his stance on terrorist interrogation.' You said "not sure why people are assuming Yoo was a conservative," even though no one was "assuming Yoo was a conservative." There is no need for anyone to be "assuming" that, because it's well-known fact (although maybe not known by you) that he is a conservative. At least a self-identified 'conservative,' if not actually true to the meaning of the word.

may be you should have quoted my complete comment instead of just that one sentence.

The other words in your "complete comment" don't change anything I just said.

Having issues and knowing you have issues puts you miles ahead of the people who have issues and don't know they have issues. And I think most people who have issues fall into the latter category. So I respect you for taking a big step to be bigger than your issues.

I assume you're referring to HappyShooter, and I agree. I also understand why it was too late for HS to get himself off Orin's last nerve. But having often been appalled at things HS says here, I'm appreciate the chance to echo your admiration for him in this respect.

jukebox,i don't want to beat the deadhorse any more particularly this late (but seeing that the comment thread is at 99, let me respond to you and make it a century:)

you are right about my comment not being clearly worded. but i still think it says what i meant - when someone does something wrong or of which one disapproves, unless his ideology or party affiliation is the cause, why bring that into the mix?

to that effect see my simpler examples about alcoholic Bush, tax cheats etc.

when someone does something wrong or of which one disapproves, unless his ideology or party affiliation is the cause, why bring that into the mix?

OK, thanks for clarifying. I don't see this question expressed in your original comment, but I accept that it's the question you had on your mind. And I think it's a fair and interesting question.

It's not just that Yoo happens to be a conservative, and also happened to write some odious memos. Those two facts are closely connected. He wrote those memos in connection with supporting an important policy being pursued by a conservative government. He was in that job to begin with because he's a conservative. And notice that the people who have been defending him and those policies are mostly conservatives.

This is why we're talking about the fact that he's a conservative, and not, for example, talking about the fact that his background is Korean. His background as a Korean has nothing to do with the memos he wrote. But his identity as a conservative has a great deal to do with the memos he wrote. Needless to say, the memo was part of his job. If he had done something objectionable outside his job (e.g., some form of law-breaking), there would probably be little or no reason to drag his identity as a conservative into the discussion (unless, say, he was a drug addict in his personal life while having a job supporting the conservative position regarding the war on drugs).

We are paying no attention at all to all sorts of other personal qualities (like, say, his height, or his sexual or dietary preferences, or whether he is left-handed or right-handed) that just aren't relevant. But his identity as a conservative is relevant.

And notice that the people who have been defending him and those policies are mostly conservatives.

And the author of the OP being criticized by those people is also a conservative. Not that your comment suggests otherwise, but I think it's important to point out that being a conservative, in and of itself, doesn't lead one to do or support what Yoo did. Other personal traits are required, and those aren't a function of political ideology.

Forget that. Or answer it if you like. Either way, I have a more important question. Was the thrill of being rude in public worth putting another nail in the coffin of our* privilege to comment here at all?

And the author of the OP being criticized by those people is also a conservative.

I know, and that's why I said "mostly." But you're making an important point, and I'm glad you spoke up to make it. It's a point that should have been part of my comment.

Other personal traits are required, and those aren't a function of political ideology.

I'm not sure that's exactly right, to the extent that "personal traits" and "political ideology" are not entirely separate matters. John Dean has written thoughtfully about "authoritarian Republicans" as a "personality type" (link, link, link, link). And so have others.

==================
antonk:

Read up …

There must be two different commenters using the name AntonK. Because I remember someone by that name saying this:

Yoo spends much of the op-ed rationalizing the criticism of the his memo, ignoring the fact that it was Steven Bradbury's OLC memo almost seven years later that summarized the most salient criticism. And he does not engage the substance of Bradbury's points at all, but spins this as a political attack by the Obama administration. (The WSJ headline adds, "Why the latest assault on Bush antiterror strategy could make us less safe.")

The op-ed concludes:

In releasing these memos, the Obama administration may be attempting to appease its antiwar base -- which won't bother to read the memos in full -- or trying to look good for the chattering classes.

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

So, by Yoo's logic, it is the release of the original memo that is the problem, not its discredited content.

And in trying to head off any consequences for the lawyers who wrote bad advice, he conflates their role with that of "intelligence and military officials" who may rely on such advice.

Overall, Yoo's op-ed appeals to our basic sympathy for those whose job it was to make hard choices after 9/11. On first reading, I felt that sympathy. But I find his excuses disingenuous and unpersuasive.

May I say that, while I understand and appreciate the particular challenges of moderating a blog, I do hope that you are able to keep comments open?

It is a rare and fine thing to be able to have a forum like this. Although I don't comment here as much as I'd like, I value very much the give and take and often insightful remarks that characterize the interaction. Some of us may never get to law school and this forum is a slim but significant consolation.

Thank you for maintaining this kind of accessibility, despite the inexcusable abuses of a few infractors.

I'm not sure that's exactly right, to the extent that "personal traits" and "political ideology" are not entirely separate matters. John Dean has written thoughtfully about "authoritarian Republicans" as a "personality type"

George Lakoff makes a similar point, and I agree with it, but I also think it's easy to overstate. For example, the crux of the Washington Monthly article is that authoritarians prefer Republicans by 20%. That's significant, and it lends credibility to the association you drew, but a 20% preference also leaves a lot of authoritarians not voting Republican. And it says nothing of how many voters have authoritarian leanings, so it's unclear how much of either party they could represent.

I suspect not very large, but certainly loud and activist. It's that fact, i.e., that authoritarians and other extremists are so activist and loud, and are often interesting to read and listen to, that makes them easy to paint as the public faces of both parties.

Back to your point, I think the secretive, insular White House culture Cheney and Addington fostered did create a hospitable environment for authoritarian excesses like the Yoo memos. And that authoritarians are more likely to be Republican may have made it somewhat more likely there'd be a few Yoo's around to propagate their views. Moreover, liberal ideology aside, my very strong preference for Democrats over Republicans reflects my opinion that the Democratic Party hasn't been nearly so overtaken by its extremist authoritarian contingent as the Republicans have.

Nonetheless, my impression remains that non-activist, mainstream liberals and conservatives have a lot more in common than not. Unfortunately, those commonalities aren't very interesting to read or write about, and the people who share them aren't generally the most motivated to make themselves heard. So the interesting differences at the margins fill the vacuum and appear disproportionately large.

my impression remains that non-activist, mainstream liberals and conservatives have a lot more in common than not. … the interesting differences at the margins fill the vacuum and appear disproportionately large.

It's true that in our news culture the "interesting differences" get magnified. And I think this tends to obscure an important underlying reality: what the two parties offer is not terribly different. In my opinion, we have the illusion of choice, but not really that much choice. As I've often said, it would be good if we had a two-party system. We could solve problems more effectively if we were choosing from, and open to, a broader range of possible solutions. It's true that mainstream liberals and conservatives fundamentally have a lot in common, but there are still lots of different ways of achieving the same goals, and some solutions are better than others.

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